CA Unpub Decisions

On the morning of March 13, 2004, Michael Moncur finished his shift at Crogans Bar & Grill, Inc., dba Crogans Sports Bar & Grill (Crogans or the bar) in Walnut Creek. After drinking a 12-ounce beer at the bar, Moncur drove to Antioch, where he attended a hot tub party and consumed more drinks. He left the party at approximately 3:45 a.m. and began to drive home. On his way home, his car struck Normida Serquinas car and killed her. Serquinas decedents, plaintiffs Segundo Serquina, Rosechily Serquina, and the Estate of Normida Serquina (plaintiffs) filed a wrongful death action against Moncur, Crogans, and Ralph Kaine, then the manager of Crogans. Plaintiffs alleged a claim for negligence, which included a negligence per se theory of liability, as well as claims for negligent operation of a motor vehicle and premises liability.

Gloria L. Dodd is a doctor of veterinary medicine who has practiced in California since March 1960. Her current office is in Sea Ranch, Sonoma County. She is well-known in the field of homeopathic veterinary medicine. Dodd employs a range of alternative modalities characterized as energy medicine, including homeopathy, acupressure, color therapy, diet, dowsing, nutrition, dietary supplements, vitamins, minerals, and radionics. The last of theseradionicsinvolves diagnosis and healing through extra-sensory faculties in which Dodd broadcast[s] healing energy to animals not present in her office. Typically, Dodd does not examine or treat animal patients in her office. Rather, she has the clientthe patients ownercomplete a detailed questionnaire about the patient, reviews the patients recent medical records, and examines photographs of the patient. She typically requires that an animal patient who is not present have an attending local veterinarian. In her appeal, Dodd contends the ALJ erred in imposing these probationary terms. She urges that she should not be required to comply with the in person examination requirement of California Code of Regulations, title 16, section 2032.1 (regulation section 2032.1) because the Board failed to prove that her use of alternate methods to conduct examinations was not in accord with the states veterinary standards of practice. In the same vein, she urges that she should not be required to maintain a premises permit under Business and Professions Code section 4853 (statutory section 4853) when she sees no animals there. As discussed below, Court conclude the trial court did not err in its partial grant and partial denial of Dodds petition for administrative mandate, and Court affirm the judgment.

Tony K. appeals from a judgment entered after he pleaded no contest to resisting an officer (Pen. Code, 69) and misdemeanor battery. (Pen. Code, 242.) He contends (1) the trial court erred when it failed to obtain and consider the appropriate report prior to sentencing, (2) the court failed to consider his needs prior to sentencing, and (3) the court erred when it imposed a $30 fine. Court will affirm.

Defendant M.M. is the father of one-year-old M.P., a dependent child of the juvenile court. The juvenile court terminated Fathers parental rights. Father does not challenge that order on appeal. Rather, he asks that we correct two of the juvenile courts findings of jurisdiction: (1) that Father had previously been convicted of sexual abuse as defined in Penal Code section 11165.1; and (2) that Father had admitted committing conduct constituting sexual abuse. Father contends the jurisdictional findings are not supported by substantial evidence. We reject Fathers contention because he has waived the issue and because the findings are supported by substantial evidence in the record.

The trial court in this marital dissolution proceeding determined contested property issues following presentation of conflicting evidence. The trial court entered a judgment which, inter alia, determined the former family residence to be the separate property of respondent James Parks (James),[1] denied reimbursement to the community for purported improvements to that residence and for community pension payments received by James, and awarded an investment account to James as his separate property. Appellant Shelley Parks (Shelley) contends that the court committed reversible error in refusing to issue a statement of decision and further erred in its evaluation and legal analysis of tracing separate and community funds relative to the residence and investment account. She also claims that the trial court erroneously denied reimbursements to the community. We reverse and remand to the trial court for retrial of one claim for reimbursement to the community and for correction of a clerical error. In all other respects Court affirm the judgment.

Sharon Rodrigues (Rodrigues) appeals from the judgment entered in favor of her former employer, Bayer Corporation and subsidiary Bayer Healthcare LLC (collectively Bayer),[1] on her causes of action under the Fair Employment and Housing Act (Gov. Code, 12940 et seq. (FEHA)).[2] Following a bench trial, the trial court concluded that Rodrigues failed to prove: (1) that Bayer unlawfully discriminated by failing to promote her or by terminating her employment; (2) that Bayer retaliated against her for reporting discrimination; and (3) that Bayer failed to take all necessary steps to ensure a workplace free of discrimination or retaliation. Rodrigues claims that the trial court applied incorrect legal standards and that the judgment is not supported by substantial evidence. Court affirm the judgment.

Defendant Pashtoon Farooqi appeals from a judgment entered after a jury found him guilty of false imprisonment by violence, assault, and two counts of sexual battery. Defendant admitted he had been previously convicted of a serious and violent felony within the meaning of Penal Code section 667, subdivisions (d) and (e) and section 1170.12, subdivisions (b) and (c)(1). Defendant contends the trial court erred by (1) admitting evidence of defendants prior sexual offenses under Evidence Code section 1108 (all further statutory references are to the Evidence Code unless otherwise specified); (2) instructing the jury with a modified version of CALCRIM No. 1191, which he argues violated his due process rights and unconstitutionally lessened the prosecutions burden of proof; and (3) miscalculating defendants presentence custody credits. Court affirm.

Defendant Larry Rothman appeals from a judgment for plaintiffs George Shotell, Jr., and Danette K. Shotell on their legal malpractice complaint. He contends insufficient evidence showed causation i.e., plaintiffs would have obtained a better result but for defendants negligent representation of them in lease negotiations with their tenant and the ensuing breach of lease litigation.
Court agree. Insufficient evidence showed plaintiffs would have obtained the three-year personal guarantee they sought from their tenants principal but for defendants transactional negligence. The principal testified he would not have agreed to that guarantee. No substantial evidence showed otherwise. And insufficient evidence showed plaintiffs would have held the principal personally liable for the tenants unpaid rent but for defendants litigation negligence. No substantial evidence supported the alter ego or fraud theories defendant failed to pursue. We reverse.

Defendant Judlin Jeanlouis appeals a judgment entered upon a jury verdict finding him guilty of two counts of robbery in concert (Pen. Code,[1] 211, 213, subd. (a)(1)(A)), burglary of an occupied dwelling ( 459), assault ( 240) and battery ( 242), and receiving stolen property ( 496, subd. (a)). He contends on appeal that he was deprived of the effective assistance of counsel and that the trial court committed sentencing error. We shall reverse the conviction of assault ( 240) and order the trial court to dismiss the offense and to amend the abstract of judgment both to reflect the dismissal and to rectify a clerical error. In all other respects, Court shall affirm the judgment.

Hai Dinh pleaded guilty to assault by means likely to produce great bodily injury (count 1) and assault with a deadly weapon with force likely to produce great bodily injury (count 2). He also admitted the great bodily injury enhancement in count 1, a serious felony prior, and strike priors for assault with a firearm and residential burglary. The People dismissed the remaining counts and allegations. Dinh acknowledged in writing and at the change of plea hearing that his maximum punishment could include a sentence of 58 years to life and a restitution fine of up to $10,000. The trial court struck the residential burglary strike. It sentenced Dinh to 16 years in prison and ordered him to pay a $10,000 restitution fine and a $10,000 parole revocation fine under Penal Code sections 1202.4, subdivision (b) and 1202.45. (Undesignated statutory references are to the Penal Code.)
The sole issue on appeal is whether the court abused its discretion in imposing the maximum fines. We conclude that Dinh forfeited his claim by failing to object at sentencing (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott)), and reject his alternative claim that his trial counsel rendered ineffective assistance by failing to object. Accordingly, Court affirm the judgment.

Jose Jesus Arevaloherrera appeals from a judgment of conviction entered after a jury found him guilty of multiple counts of lewd conduct upon a child under 14 years of age and continuous sexual abuse upon that child, his daughter. (Pen. Code, 288, subd. (a); 288.5, subd. (a).)[1] He contends the court erred in instructing the jury with CALCRIM No. 1193, pertaining to the use of Child Sexual Abuse Accommodation Syndrome evidence. He also contends the court erred in refusing to instruct the jury on lesser included offenses. Court affirm the judgment.

A jury convicted Edward Martinez of attempted carjacking (Pen. Code, 215; 664, subd. (a); all statutory references are to this code), active participation in a criminal street gang ( 186.22, subd. (a)), and found to be true the allegation he committed attempted carjacking for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members ( 186.22, subd. (b)(1)). Defendant challenges the sufficiency of the evidence to sustain the convictions and gang enhancement, and argues the trial court should have stayed the term imposed for active gang participation. For the reasons expressed below, Court affirm the judgment.

In this action for declaratory relief, a court trial resulted in a judgment in favor of Donald J. Markowitz (Donald) and against Debra W. Markowitz (Debra), (formerly husband and wife). Donald and Debra were plaintiffs and cross-defendants in two consolidated lawsuits against Mordechai and Monica Kachlon, which resulted in a money judgment being entered in favor of Donald and Debra, though they received separate awards, in different amounts. Shortly after judgment was entered, Debra recorded an abstract of judgment, thereby creating a judgment lien on the Kachlons real property; Donald later recorded abstracts of judgment (one against each of the Kachlons), thereby also creating a judgment lien on the Kachlons real property. Donald then filed the present action for declaratory relief, by which he sought and obtained a judicial declaration that his judgment lien had equal priority with Debras based upon Code of Civil Procedure section 697.020, subdivision (b), which provides that a judgment lien recorded on the same property under the same judgment relates back to the date [an] earlier lien was created.

Debra argues on appeal, as she did in the trial court, that the underlying consolidated lawsuit resulted in separate judgments, and that therefore Code of Civil Procedure section 697.020, subdivision (b) does not apply. Thus, because her lien was recorded first, it has priority over Donalds. Court conclude that there was a single judgment, and that the plain meaning of the statute compels the result reached by the trial court. Court therefore affirm the judgment.

On August 20, 2007, a first amended information was filed charging appellant, Rebecca Kizirian, with felony child abuse resulting in a traumatic condition (Pen. Code, 273d, subd. (a), count one)[1]and felony child endangerment ( 273a, subd. (a), count two). Both counts alleged appellant committed great bodily injury on the victim, a child under age five ( 12022.7, subd. (d)). On June 6, 2008, a jury convicted appellant of both counts and found the enhancements true.
The court sentenced appellant on July 15, 2008, to prison for the midterm of four years on count one plus the midterm of five years for the great bodily injury enhancement for a total prison term of nine years.[2] The court granted applicable custody credits and imposed a restitution fine. After a hearing on August 15, 2008, the court ordered appellant to pay $78,952.50 in victim restitution.[3] Appellant filed a timely notice of appeal.
Appellants appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised she could file her own brief with this court. By letter on April 22, 2009, we invited appellant to submit additional briefing. To date, she has not done so.